Ballas v. Kenny's Key W. - 2002-684 ( La. App. 5 Cir 12/11/02), 836 So. 2d 289

Rule:

La. Rev. Stat. Ann. § 9:2800.6 sets forth a plaintiff's burden of proof in order to recover for injuries sustained in a slip and fall accident.

Facts:

Keith Ballas filed suit against Kenny's Key West, Inc. (Kenny's )alleging that he slipped and fell in a puddle of water that was leaking from a container used by Kenny's to cool beer. He alleged strict liability on the part of Kenny's. Kenny's answered with a general denial and claimed Ballas’ injuries were caused by his own negligence. The trial court found no liability on the part of Kenny's. Ballas appealed. Ballas argued, inter alia, that the trial court erred in applying La. Rev. Stat. Ann. § 9:2800.6, because Kenny's did not fit the definition of "merchant" within the statute. Ballas argued that Kenny's did not sell goods, food, wares, or merchandise, like a typical retailer or restaurant and that the conditions inside Kenny's on the night of the accident were not similar to those inside of a retailer or restaurant. 

Issue:

Did the trial court err in applying R.S. 9:2800.6 to this case because Kenny's establishment does not fit the definition of "merchant" within the statute?

Answer:

No

Conclusion:

While the appellate court agreed that the conditions in Kenny's were not similar to those of a typical retailer, the court found that § 9:2800.6 did apply. Under the broad definition of merchant, Kenny's sold goods and food at a fixed place of business. Further, the court found that Ballas did not meet the burden of proof under § 9:2800.6. The record indicated that Ballas never testified that he slipped in a puddle of water or that there was water on the floor. Rather, he testified that his pants and boots were wet. Thus, Ballas failed to prove that the selling of beer from the tubs created an unreasonable risk of harm that was reasonably foreseeable and that Kenny's had constructive notice of this condition.